LILLIE M. WINGARD, Claimant-Appellant
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 11-1214, Chief Judge Bruce E. Kasold, Judge Coral Wong Pietsch, Judge Mary J. Schoelen.
VACATED AND REMANDED.
TODD M. WESCHE, LaVan & Neidenberg, PA, Fort Lauderdale, FL, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by STUART F. DELERY, ROBERT E. KIRSCHMAN, JR.; MARTIN JAMES SENDEK, DAVID J. BARRANS, Office of the General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before MOORE, TARANTO, and CHEN, Circuit Judges.
Taranto, Circuit Judge.
In the ruling before us, the Court of Appeals for Veterans Claims held that 38 U.S.C. § 7252(b) did not preclude it from reviewing whether the Department of Veterans Affairs complied with statutory constraints on the schedule of disability ratings. The Veterans Court then held that the Department had complied. We hold that Congress has barred the Veterans Court from conducting that review and also has barred this court from itself conducting the review on appeal from a Veterans Court decision. Any such review must be conducted through a direct review of rulemaking determinations under 38 U.S.C. § 502. We therefore vacate the Veterans Court's judgment and remand for appropriate disposition of the claim in light of our conclusion.
Charlie N. Wingard, a twenty-year veteran of the United States military, died on September 23, 2005, from causes unrelated to his military service. His daughter, Lillie M. Wingard, filed a claim with the Department of Veterans Affairs for a burial-plot or interment allowance under 38 U.S.C. § 2303 and for burial benefits under 38 U.S.C. § 2302(a)(1). The Board of Veterans Appeals, though granting her claim for a plot or interment allowance, denied her claim for burial benefits, and Ms. Wingard appealed to the Veterans Court.
Section 2302(a)(1) provides for burial benefits only in the case of a deceased veteran " who at the time of death was in receipt of compensation . . . or was in receipt of pension." In 1989, the Department assigned Mr. Wingard a 0% disability rating for a service-connected inguinal hernia that had been treated and showed no evidence of recurrence, i.e., the Department found the disability non-compensable. Mr. Wingard's disability rating remained at the 0% level throughout his lifetime, so he never received any disability compensation. Mr. Wingard had no other claims pending at the time of his death and never received a Veterans-related pension. In the present case, Ms. Wingard argued that the Department nonetheless should
grant her the § 2302(a)(1) benefits because (1) " in receipt of compensation" should be interpreted to include a veteran who (at the time of death) was entitled to receive compensation and (2) Mr. Wingard was entitled to receive compensation because 38 U.S.C. § § 1110 and 1155 prohibited the Department from assigning him a 0% disability rating after finding that he had a service-connected disability.
The Veterans Court first had to decide whether it was authorized to address the statutory argument underlying Ms. Wingard's challenge. 38 U.S.C. § 7252(b) excludes from that court's review " the schedule of ratings for disabilities adopted under section 1155" and " any action of the Secretary [of the Department of Veterans Affairs] in adopting or revising that schedule." The Veterans Court concluded, however, that § 7252(b) did not preclude it from deciding whether the Secretary properly adopted a non-compensable disability rating. Wingard v. Shinseki, 26 Vt.App. 334, 339--40 (2013). The court then held that the Secretary's interpretation--that § § 1110 and 1155 allow the Department to find some disabilities non-compensable and assign a 0% disability rating--was reasonable. 26 Vt.App. at 346--47. On that basis, the court concluded that Mr. Wingard was not " entitled to receive compensation," and it denied Ms. Wingard's ...